Wednesday, August 12, 2009

Two cars collided cruising through the parking lot, but to establish a driver's negligence and legal liability for damages, more is needed than merely evidence (or agreement) that an accident did indeed occur. Court of Appeals panel holds that trial court properly granted directed verdict where there was no showing of negligence on the part of the defendant.

Analysis by Justice Guzman, who wrote the opinion:

To prevail on a negligence claim, a plaintiff must prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Here, Murchison presented less than a scintilla of evidence that Pham breached a duty to Murchison. To the contrary, the evidence is uncontroverted that a car was parked in a way that impaired Pham's view, and the collision occurred suddenly while Pham was “inching" forward to see beyond this obstruction. There is no evidence that either driver could have seen the other in time to avoid an accident, even given the low speed at which Walsh admits Pham was traveling.

On this record, any inference that Pham breached a duty to Murchison would be based solely on the fact that a collision occurred. The occurrence of a motor vehicle accident is not itself, however, evidence of negligence. Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.- Houston [14th Dist.] 1989, writ denied). We therefore overrule Murchison's sole issue on appeal.

Tuesday, August 11, 2009

In this pro-se appeal from a summary judgment in favor of a home owners' association, the Fourteenth Court of Appeals, in a panel opinion penned by a former justice sitting as a visiting judge, holds that the collection of delinquent assessments was not barred by homeowner's bankruptcy discharge. The argument was not properly presented to the trial court. As an affirmative defense, the bankruptcy discharge defense must be properly pleaded, and must be asserted in a proper response when the Plaintiff moves for summary judgment on its claim. The defendant/appellant in this case did neither. It was too late to raise the issue in a motion for new trial.

Relevant part of the opinion by Senior Justice Price follows:Discharge in Bankruptcy

In the final issue presented on appeal, [the homeowner/appellant] claims the trial court's judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no pet.).

An affirmative defense that is not pleaded or proved, and on which findings are not obtained,is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).